Common Issues in Divorce of People Over 50

Getting divorced over the age of 50 can present some issues that might not be as prevalent in divorces of younger individuals.

First, the accumulation of community assets  is far greater in older couples than in younger ones.   This may include significant real property and retirement accounts accrued during marriage.  In my experience, the more assets a couple has, the more they are apt to want to litigate the divorce as opposed to coming to an amicable settlement.

Additionally, since typically the divorcing couple will have been married for 20+ years, certain aspects of the spousal maintenance statute come into play that might otherwise not.  For instance, the spouse requesting maintenance may now be deemed too old to go back to school to get a degree to help with gaining adequate employment.  They also may be deemed to have been out of the work force for so long that it is not reasonable that they can find adequate employment.  Lastly, they may suffer from a medical condition preventing gainful employment.

When dealing with marriages of a long duration, it is also possible that the spousal maintenance award can be forever (it will always terminate by law if the spouse receiving the maintenance remarries).

Emotions often run high in divorces of people over the age of 50.  Whether this is the result of years of pent up frustration and anger or infidelity by one spouse, high emotions and divorce are not a good recipe for a quick and amicable resolution.

All told, divorces for couples over the age of 50 are typically more difficult than those of younger individuals.

Jason Pistiner, Esq.
SINGER PISTINER, P.C.
602-264-0110
jp@singerpistiner.com
www.singerpistiner.com
 

10 Things to Know to Help Your Children thru Your Divorce

While divorce is never a pleasant thing, a divorce with children is an exponentially more difficult process.  Your children will be affected by the fact that their parents are separating.  However, here are ten tips to help soften the impact on your children:

1. All children are not created equal - there is no cookie cutter method to helping a child thru a divorce;
2. Don't burden a child with your own anger - your child doesn't need to know that your spouse had an affair, etc;
3. Emphasize to your child that he or she is not the reason for the divorce - children often blame themselves.  Make sure to they are understand they had nothing to do with it;
4. Allow your child to show emotion - don't hesitate to seek professional help if you feel your child could benefit;
5. Let your child know that he or she is your first priority;
6. Don't use your child as a bargaining tool;
7. Don't use your child as a substitute spouse - your child cannot fill your ex-spouses shoes.  Your child needs to spend more time with his friends and family members even when you are lonely and no one else is around;
8. Keep your judgmental attitude to yourself - if your ex starts dating again don't make degrading remarks about his or her new love interest;
9. Don't be a Disneyland dad (or mom) - don't attempt to buy your child's love;
10. Most of the time, all children want and need is love.

Jason Pistiner, Esq.
SINGER PISTINER, P.C.
602-264-0110
jp@singerpistiner.com
www.singerpistiner.com

How to Keep Your Ex-Spouse from Ruining Your Credit

Divorce certainly leaves a person in worse financial shape than they were prior to a divorce.  The reality is you end up with approximately half the income and assets that you had previously.

As a result, divorce is one of the most common causes of bankruptcy.  Here are some strategies for helping you keep your finances in good shape after a divorce:

1. Get a copy of your credit report.  Make sure to check it for inaccuracies as errors on your report can lower your credit score and increase your interest rates.  You may soon be needing to take out a loan for a new car or house.  
2. Separate your credit from your ex.  This means you need to close any joint accounts that you have.  Cancel any credit cards that are in both of your names.  You should seek an order in your divorce that any loan associated with any  property awarded to your spouse be refinanced to get you off the loan.
3. Examine your debt.  Take a good luck at your debt and your new monthly income and determine whether you can meet your debt obligations.  If you can't, its time to examine your monthly expenses to see where you can save some money.  Otherwise, you may end up filing for bankruptcy which will stay on your credit report for several years.
4. If you file bankruptcy, immediately start rebuilding your credit.  As soon as your bankruptcy is completed you'll want to take out some credit cards and put minimal amounts on them every month and pay them off in full every month to rebuild your credit history.  Many lenders like to loan to post-bankruptcy individuals because they know you cannot file bankruptcy again for eight years.

Jason Pistiner, Esq.
SINGER PISTINER, P.C.
602-264-0110
jp@singerpistiner.com
www.singerpistiner.com

In Arizona Divorce Do I Have an Interest in My Spouse's Separate Property?

As a general rule in an Arizona divorce or legal separation, the parties are awarded an equitable distribution of the community property and each party is awarded their respective separate property (to the extent they have any).

Property acquired during marriage is as a default community property.  Separate property is typically defined as property obtained prior to marriage or obtained during marriage via gift or inheritance.  While this separate property remains the separate property of a spouse, there is Arizona case law which permits the community to gain an equitable lien in the separate property of the other spouse.

A typical instance in which the community may gain an equitable lien in the separate property of a spouse is when one spouse mixes community time and labor with their separate funds.   For example, you may have one spouse whose primary business during marriage is to take his sole and separate funds and engage in hard money lending.  He spends all of his working day engaged in this activity.  Under this scenario, the community has an equitable lien in the profits and business because of the community labor that was involved.

"Arizona courts have long agreed that the results of a spouse's labor are community property."  Rueschenberg v. Rueschenberg, 219 Ariz. 249, 252, 196 P.2d 852, 855 (2008).

The Court in Rueschenberg went on to say, "[W]here either spouse is engaged in a business whose capital is the separate property of such spouse, the profits of the business are either community or separate in accordance with whether they are the result of the individual toil and application of the spouse, or the inherent qualities of the business itself."  Id. at 257, 860.


Jason Pistiner, Esq.
SINGER PISTINER, P.C.
602-264-0110
jp@singerpistiner.com
www.singerpistiner.com

Factors Arizona Courts Look at in Deciding Child Relocation Issues

In the last year I have seen a great upswing in Arizona child relocation issues.  Perhaps this is a result of our economy and the fact that a lot of people are in job transition.

Arizona has a statute, A.R.S. 25-480,  that deals directly with the child relocation issue.  

The statute comes into play when a parent wants to relocate with a child either out of the state or more than 100 miles away.

In determining whether to grant a request for relocation, the Court focuses on what is the best interests of the child(ren). 

The factors include:

1. Those set out in ARS 25-403 (best interest factors in determining custody);
2. Whether the relocation is being made or opposed in good faith and not to interfere with or to frustrate the relationship between the child and the other parent;
3. The prospective advantage of the move for improving the general quality of life for the custodial parent or for the child;
4. The likelihood that the parent with whom the child will reside after the relocation will comply with parenting time orders;
5. Whether the relocation will allow a realistic opportunity for parenting time with each parent;
6. The extent to which moving or not moving will affect the emotional, physical or developmental needs of the child;
7. The motive of the parents and the validity of the reasons given for moving or opposing the move including the extent to which either parent may intend to gain a financial advantage regarding continuing child support obligations; and
8. The potential effect of relocation on the child's stability.

Overall, it is has been my experience that the Court is predisposed against relocation, mostly because it typically greatly reduces the parenting time of the non moving parent.  As such, I counsel clients attempting to relocate that to be successful they need to have some real compelling reasons for the move and a plan to facilitate ample parenting time with the other parent.

Jason Pistiner, Esq.
SINGER PISTINER, P.C.
602-264-0110
jp@singerpistiner.com
www.singerpistiner.com

Statistics Regarding Children and Divorce

Here are some interesting statistics that I found regarding children and divorce:

1. 40% of American children are being raised without their fathers.
2. Studies in the early 1980's showed that children in repeat divorces earned lower grades and their peers rated them as less pleasant to be around.
3. Teenagers in single-parent families and in blended families are three times more likely to need psychological help within a given year.
4. Compared to children from homes disrupted by death, children from divorced homes have more psychological problems.
5. Following divorce, children are fifty percent more likely to develop health problems than two parent families.
6. Seventy percent of long-term prison inmates grew up in broken homes.
7. Children of divorced parents are roughly two times more likely to drop out of high school than their peers who benefit from living with parents who did not divorce.

* Initial Source - http://www.marriage-success-secrets.com/statistics-about-children-and-divorce.html

Jason Pistiner, Esq.
SINGER PISTINER, P.C.
602-264-0110
jp@singerpistiner.com
www.singerpistiner.com

Should Parent's Lose Custody of Super Obese Kids?

A recent commentary in the Journal of the American Medical Assocation stated that it would be more ethical to put super obese kids into temporary foster than them have obesity surgery.

Dr. David Ludwig, an obesity specialist at Harvard-affiliated Children's Hospital Boston, said it would be in the best interest of the children to get them help that for whatever reason their parents can't provide. 

There are approximatley 2 million U.S. children that are extremely obese.  Extreme obesity could lead to type 2 diabetes, breathing difficulties and liver problems that could kill them by age 30, said Dr. Ludwig.

In 2009, an article in Pediatrics made similar arguments, advocating for temporary removal from the custody of parents "when all reasonable alternative options have been exhausted."

Will obesity arguments now have an impact in Arizona child custody disputes?   Based upon the statute that the Court looks at in determining custody, it really boils down to the what is in the best interest of the child(ren).  Therefore, it could be argued that a demonstrated failure by one parent to provide proper nutrition or exercise to the child(ren) when they are in his or her care, and a resulting severe weight issue with the child(ren), might form the basis for one party being awarded primary physical custody over another.


Jason Pistiner, Esq.
SINGER PISTINER, P.C.
602-264-0110
jp@singerpistiner.com
www.singerpistiner.com

Divorcing Parents in Massachusetts to be Prevented from Having Sex?

Massachusetts is considering what I believe to be a ridiculous bill regarding the rights of divorcing parents to engage in sexual relations.  The article appeared in the Boston Herald and the text of it is presented here:

"Custodial parents caught up in contentious divorces would need a judge’s nod to date or carry on a sexual relationship inside their own home under a bill Beacon Hill pols will take up this week.

Wrentham Selectman Robert Leclair said his bill is meant to prevent domestic violence and shield children while the divorce is under way. “It’s not intended to abridge the rights of anybody,” he said. “If they want to have an extra-marital affair, just get away from the home.”

The bill, which lawmakers will hear Wednesday, would bar custodial parents from “conducting a dating or sexual relationship within the home” until the divorce is settled.

“It could go that far if the courts found it detrimental to the children,” said Leclair, who said he had a bitter divorce. Leclair is the former president of Fathers United for Equal Justice, which disbanded in the 1990s. But he’s not earning much support from similar fathers-rights groups. Ned Holstein of Fathers and Families called the bill a distraction from the shared parenting bill — creating a legal assumption of equal custody rights — that lawmakers also will take up Wednesday.

“By and large, family courts have washed their hands of who’s sleeping with whom,” said Holstein.
State Sen. Richard Ross sponsored the bill for his constituent, but has taken no position on it. Leclair has submitted it repeatedly in recent years to no avail."

http://bostonherald.com/news/politics/view.bg?articleid=1338272


Jason Pistiner, Esq.
SINGER PISTINER, P.C.
602-264-0110
jp@singerpistiner.com
www.singerpistiner.com

The Philosophy of How We Handle Family Law Cases

Facts about Mental Health Issues

Magellan Health Services of Arizona (the Regional Behavioral Health Authority for central Arizona) recently released some facts about mental health issues.  Here they are:

• One in five adults, approximately 57.7 million people nationwide, experiences mental illness in any given year.
• One in 17 lives with a serious mental illness, such as schizophrenia, major depression or bipolar disorder, and about one in ten children have a serious mental or emotional disorder.
• Of the adults who use services for the homeless, it is reported that 31% have a combination of these conditions.
• Half of all lifetime cases of mental illness in juvenile justice systems have at least one mental disorder with a least 20% experiencing significant functional impairment from a serious mental illness.
• An estimated 5.2 million adults have co-occuring mental health and addiction disorders.
• People who suffer from a serious mental illness often have a greater risk of having chronic medical issues.

Jason Pistiner, Esq.
SINGER PISTINER, P.C.
602-264-0110
jp@singerpistiner.com
www.singerpistiner.com

Signs Your Spouse or Child May be Using Drugs

Many Arizona divorce and child custody cases I deal with involve one party suspected of abusing drugs and/or alcohol.  There may also be issues where a child is suspected of drug use.  Here are some signs that may indicate drug use (realize however that there could be other reasons for these behaviors):

Emotional and Social Signs

• Moodiness, excitement, anger, hostility, depression
• Constant lying and stealing
• Refusing to admit to the harmful effects of drgus
• Avoiding old friends or people who could confront them about behavior changes
• Being secretive about phone calls
• Having friends they do not want you to meet or talk about
• Being evasive about their whereabouts
• Loss of motivation
• No interest in everyday life
• Playing truant from school

Physical Signs

• Drowsiness
• Trembling
• Red eyes, dilated pupils
• Lack of interest in personal hygiene and appearance
• Slurred speech
• Loss of, or increase in appetite
• Uncoordinated movements
• Circles under the eyes
• Irregular sleeping habits
• Frequent colds and coughs
• Weight Loss

Drug and/or alcohol abuse is a serious matter and one that the Arizona Courts take very seriously.  If you have any questions regarding the interplay between drug use and Arizona family law please do not hesitate to contact me.

Jason Pistiner, Esq.
SINGER PISTINER, P.C.
602-264-0110
jp@singerpistiner.com
www.singerpistiner.com

Jurisdiction of Arizona Courts to Modify Child Support

Recently, the Arizona Appellate Court handed down a decision in State v. Tazioli, 2011 WL 239547 (Ariz. App.Div. 1), addressing the question of jurisdiction in a child support modification case where the original child support order was from Arizona but now both Mother and Father are no longer residents of Arizona, and Mother refuses to consent to jurisdiction in Arizona.

The Court held that Pursuant to A.R.S. Section 25-1225, the trial court lacked jurisdiction to modify the child support order because “neither party currently resides in Arizona and Mother refuses to consent to jurisdiction in Arizona.”  

The appellate court directed the lower court to forward Father's petition to the appropriate jurisdiction.

Jason Pistiner, Esq.
SINGER PISTINER, P.C.
602-264-0110
jp@singerpistiner.com
www.singerpistiner.com

New Arizona Child Support Guidelines

The Arizona child support guidelines have been updated by increasing the child support amounts on the schedules, raising the self support reserve to $903.00 per month and adding the following language to Section 20 regarding deviations, “In cases with significant disparity of income between the custodial and noncustodial parent, a deviation may be appropriate.”

The revised Arizona child support guidelines apply to orders entered after May 31, 2011.

You can review the revised child support guidelines here:
www.azcourts.gov/Portals/22/admorder/Orders10/2010-116.pdf

Jason Pistiner, Esq.
SINGER PISTINER, P.C.
602-264-0110
jp@singerpistiner.com
www.singerpistiner.com

Recession and Divorce

Recently, the University of Virginia's National Marriage Project issued a report titled, "The Great Recession and Divorce."

The Report can be found here:
http://www.virginia.edu/marriageproject/pdfs/NMP-GreatRecession.pdf

The report contains some interesting findings such as:

1.  About 29 percent of married Americans—the same amount who agree that the recession brought financial stress to their marriage—agree that the recession has caused them to deepen their commitment to their marriage. Only 13 percent disagree with this statement, while another 58 percent neither agree nor disagree with it.

2.  The recession also appears to have staved off divorce in some instances. Among married Americans who say they were considering divorce or separation prior to the recession (about 5 percent of all respondents in the survey), 38 percent say that the recession has caused them to put aside divorce or separation.

3.  Still, the financial stresses of the recession have had a negative impact on Americans’ marital happiness. Married Americans who have been relatively unaffected by the financial downturn—those who report low levels of financial worry, no trouble paying their mortgage, and no employment setbacks—are the most likely to report having a very happy marriage (43 percent). Those who have experienced one stressor do not lag far behind these other Americans in marital happiness—39 percent report a very happy marriage. But those with two or three financial stressors are far less likely to report a happy marriage: just over one quarter of these Americans (27 percent).

There is no doubt that financial stress plays a factor in the both the happiness of a marriage and the subsequent divorce rate.

Jason Pistiner, Esq.
SINGER PISTINER, P.C.
602-264-0110
jp@singerpistiner.com
www.singerpistiner.com

Parents Who Attempt to Increase Parenting Time to Decrease Child Support

In many parenting time and child support modification cases I am involved with, it appears that the motive of a party in requesting additional parenting time is to reduce their child support obligation (as opposed to gaining meaningful time with their children).

The rationale as they see it is that the more parenting time they are awarded the less child support they will have to pay, and thus they will be better off financially.

However, the moving party rarely ends up in a better financial situation.  This is because the Arizona Child Support Guidelines were created to compensate a parent for the costs involved of providing for the needs of their children when they are in his or her care.

For example, let's say as part of a divorce Mother was awarded primary custody of the parties' two children and Father was given parenting time of one overnight a week and every other weekend (104 days of parenting time) .  Let's further assume that Father was ordered to pay child support of $800.00 per month pursuant to the Arizona Child Support Guidelines.

Let's now assume that Father files to modify the parenting time award requesting that he be awarded every weekend in addition to one overnight a week (160 days of parenting time).  If he prevails on his request, the monthly child support award would be reduced to approximately $475.00.  Therefore, Father's yearly child support amount would be reduced by $3,900.00. 

However, Father now has to provide for the children's daily needs such as food, entertainment, etc. for an additional 56 days per year.  Although the additional cost to do so may be somewhat less than the savings realized by Father, it won't be by much.  Once you figure in the legal fees incurred by Father to get the reduction, he would end up in the negative.

When deciding establishment and modification of parenting time cases, the Court looks solely at what is in the best interests of the children.  If the Court suspects that one party's position is motivated solely by child support purposes as opposed to wanting to spend quality time with their children, then that party can expect an unfavorable result.  


Jason Pistiner, Esq.
SINGER PISTINER, P.C.
602-264-0110
jp@singerpistiner.com
www.singerpistiner.com

Getting an Emergency Order in Family Law Cases

Lately I have been inundated with client's who are in need of emergency orders in their family law cases.

Most of them have stemmed from alcohol and/or drug abuse by the other parent and the obvious concerns regarding that parent's fitness to have unfettered parenting time with a minor child.  

In order to get an emergency order, it must be demonstrated to the Court that an irreparable harm will occur to the children if an emergency order is not issued.  A parent suspected of being addicted to drugs and/or alcohol will almost always meet this burden.

The process of getting an emergency order however is timely and thus costly.  First, a verified motion must be drafted.  Secondly, the attorney must go down to the Court and file the motion (as opposed to having his daily runner do it) and then walk it to the assigned Judge.  It typically takes anywhere from an hour to 3 hours of waiting by the attorney for the Judge to make a ruling and/or make time to have the attorney appear in the courtroom and further explain the situation.

If the Judge grants the motion, an Order will be issued along with a date for an evidentiary hearing.  The Order along with the original motion need to then get served on the other party.  Both parties will then have to appear at the evidentiary hearing so that the Court can hear both sides of the argument.


Jason Pistiner, Esq.
SINGER PISTINER, P.C.
602-264-0110
jp@singerpistiner.com
www.singerpistiner.com

Divore Statistics

Here are some interesting divorce statistics:

AGE AT MARRIAGE FOR THOSE WHO DIVORCE IN AMERICA*

Age                                Women              Men

Under 20 years old         27.6%              11.7%
20 to 24 years old           36.6%              38.8%
25 to 29 years old           16.4%              22.3%
30 to 34 years old           8.5%                11.6%
35 to 39 years old           5.1%                6.5%

DIVORCE STATISTICS IN AMERICA FOR MARRIAGE*

First Marriage           45% to 50% marriages end in divorce
Second Marriage      60% to 67% marriages end in divorce
Third Marriage          70% to 73% marriages end in divorce

DIVORCE RATES DEPENDING ON WHETHER THERE ARE CHILDREN**

Couples With Children         40%
Couples Without Children    66%

MISCELLANEOUS STATS RELATED TO DIVORCE***

Description                                                 Statistics

State with the lowest divorce rate:             Massachusetts (2.4 per 1,000 population)

State with the higest divorce rate:              Nevada (9.1 per 1,000 population)

% of US pop that is divorced:                    10%

Mean age at first divorce:                          For Males: 30.5 yrs.
                                                                   For Females: 29 yrs.

Median age at second divorce:                  For Males: 39.3 yrs.
                                                                   For Females: 37 yrs.

Median number of years people wait
to remarry after their first divorce:              For Males: 3.3 yrs.
                                                                   For Females: 3.1 yrs.

Average length of divorce proceedings:    1 year


Sources
* Jennifer Baker, Forest Institute of Professional Psychology, Springfield
** Discover Channel
*** Divorce Magazine


Jason Pistiner, Esq.
SINGER PISTINER, P.C.
602-264-0110
jp@singerpistiner.com
www.singerpistiner.com

Why you should never let a default be entered against you

In many divorce cases that I am involved with, one party does not answer the initial petition, which leads to a default judgment being entered against them. They do so at their peril.

Most initial petitions filed in a divorce case are void of specifics, instead using language like, “the parties’ community property and debts should be equitably divided.” Equitable division is not the same as equal division. If you have been defaulted upon, your right to argue what is equitable is extinguished.

A perfect example of this is a recent case I have been retained on by a Husband, who recently graduated from medical school. He allowed a default to be entered against him, only to discover that at the default hearing his Wife claimed that an “equitable” division of community property and debts needed to take into account the value of his medical degree.

Subsequently, Mother was awarded almost all of the community property, with Husband being awarded almost all of the community debt. The difference was close to $400,000.00.

I am now trying on behalf of my client to set aside the default judgment and undo what was done, a far harder process than if he had not allowed the default to be entered and had made his case before the Court.

The moral of the story is, never allow a default to be entered against you. You may think you understand what the outcome will be, but you’ll probably end up being unpleasantly surprised.

Jason Pistiner, Esq.
SINGER PISTINER, P.C.
602-264-0110
jp@singerpistiner.com
www.singerpistiner.com

Estate Planning - Are you Prepared?

Jason Pistiner, Esq.
SINGER PISTINER, P.C.
602-264-0110
jp@singerpistiner.com
www.singerpistiner.com

The Tucson Tragedy and the Need to Have Estate Planning Documents

With the recent events that transpired last weekend in Tucson, it reminded me of the importance in stressing to people, young and old, the need to have your estate planning documents in order.

Do you have a Will, Trust, Living Will, Health Care Power of Attorney and General Power of Attorney?

If you were one of the many victims in need of urgent medical care do you have someone appointed to make medical decisions for you if you were unable?

If you were one of the unfortunate people who did not survive the tragedy will your estate be divided as you wanted? Will your choice of a guardian for your children be clear?

In this uncertain world you never know what will happen. You can only try and be prepared.

Jason Pistiner, Esq.
SINGER PISTINER, P.C.
602-264-0110
jp@singerpistiner.com
www.singerpistiner.com